This case was before us on a former appeal, and remanded for a new trial on account of an erroneous instruction. For a statement of the facts and the law applying thereto, see the decision on former appeal, 75 Wash. 220, 134 Pac. 941. On the former trial, the jury awarded respondent $5,500. On retrial the jury allowed $12,500. In the last trial, the evidence as to the manner of the happening of the accident and the details surrounding it was the same as in the former trial. The law of the case was, therefore, settled by the former decision.
The appellant again insists that the undisputed physical facts necessitate a reversal of the judgment, but the conditions existing were proven the same as in the former trial, and the contention as to undisputed physical facts was there passed upon adversely to appellant.
Appellant complains, also, of the length of the instructions as a whole, urging that they tend to confuse and not to enlighten the jury; but does not attempt to show specifically that they in any way prejudiced appellant. Neither the length nor the brevity of the instructions to the jury is necessarily prejudicial. From an examination of the instructions as a whole, we do not consider that the length of them or the repetition of various matters contained therein would necessarily prejudice appellant. Alaska Steamship Co. v. Pacific Coast Gypsum Co., 78 Wash. 247, 138 Pac. 875.
Appellant complains also of an instruction as follows:
“If you should find from the evidence that the plaintiff, immediately before he started to cross the street failed to
This, argues appellant, under the decision in Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876, determined the matter of the negligence of appellant by violating the ordinance as to use of the street as a matter of law, instead of submitting it to the jury as a matter of fact. We do not so consider it. The appellant’s theory, and testimony introduced in support thereof, was that its automobile truck was being driven at the time of the happening as near the right-hand curb as possible, going in the direction it was, in accordance with the provisions of the ordinance. It did not seek to excuse its motor truck being in the middle of the street, but rested its case upon the theory that it obeyed the ordinance. On the other hand, the respondent and all his witnesses testified that the automobile truck struck the respondent in the middle of the street, and that therefore the truck was not where it should have been to comply with the ordinance. The instruction was therefore not erroneous.
There are other matters urged by the appellant which we think were all settled on the appeal in the former case and not necessary to be noticed now. Appellant, however, does contend that the verdict of $12,500 is excessive, and that the size thereof indicates passion and prejudice on the part of the jury. The former verdict of $5,500 was indeed small, where the injuries were of the character of the injuries to respond
While this court dislikes to interfere with the prerogative of the jury in passing upon a question of fact, when the verdict shows that it could not have been based upon the testimony, it becomes its duty to interfere. Vowell v. Issaquah Coal Co., 31 Wash. 103, 71 Pac. 725. The sum of $7,500 placed at interest at seven per cent, which is a low and reasonable rate, would yield $525 per annum, which would probably be the average earning capacity at the utmost of the respondent during the period of his expectancy. He still has some slight earning capacity. We think, therefore, that $7,500 is all that respondent is entitled to.
Morris, C. J., Chadwick, Parker, and Mount, JJ., concur.